Introduction
The U.S.-Sudan Claims Settlement Agreement and the implementing legislation represent an unprecedented settlement agreement with a state sponsor of terrorism in that the U.S. government provided for compensation for all but a small group of U.S. citizen victims of the foreign state’s terrorist activities. The unfair imposition of all the burdens of the agreement on this small group of victims renders the Sudan settlement agreement unconstitutional and requires remedial government action.
Background
On August 12, 1993, the United States Department of State designated the Republic of Sudan as a state sponsor of terrorism, a designation that carries with it significant legal and economic penalties. Official State Department records state that Sudan’s terrorist designation was occasioned by its support for Palestinian terrorist organizations such as Hamas and Palestinian Islamic Jihad and by its support for the international terrorist group, Hizballah.
Of these terrorist organizations, Hamas, in particular, benefitted from Sudan’s material support. Throughout the more-than-30-year rule of Colonel Omar al-Bashir, Sudan provided Hamas with financial support, specialized and professional military training for the planning and execution of terrorist attacks, training bases and military facilities in which terrorist training was provided to Hamas and its operatives; safe haven and refuge from capture for Hamas leaders and operatives; means of electronic communication; financial services, including banking and wire transfer services; and means of transportation. Sudan also enabled Hamas to manufacture and stockpile weapons in its territory.
Additionally, Sudan facilitated arms shipments from Libya and Iran to Hamas, both overland and by sea. For example, in March 2014, the Israeli navy intercepted the commercial ship, Klos-C, off the coast of Sudan. The Israeli navy examined the ship’s cargo and found a variety of weapons including 40 M-302 surface-to-surface rockets having a range of 90-200 kilometers; 181 122 mm mortar shells; and 400,000 rounds of assault rifle ammunition. These weapons originated in Iran and were being shipped to Hamas, with Sudan’s assistance.
In 2016, due to international pressure, Sudan severed ties with Iran. But, until at least 2019, Sudan continued to provide Hamas with safe haven, local offices, and other forms of material support. By providing this extensive material support to Hamas, Sudan enabled and participated in countless Hamas terrorist attacks. Many of these attacks targeted or victimized U.S. citizens.
The following are just a few examples of the American victims of Sudan-assisted Hamas terrorism:
- In November 1993, 19-year-old U.S. citizen, Yitzchak Weinstock, was murdered in a Sudan-sponsored Hamas terrorist attack while he traveled from his grandparents’ home in Jerusalem to visit his teachers and rabbis from his former school.
- In March 2008, 18-year-old U.S. citizen, Yonadav Hirshfeld, was one of 8 unarmed students murdered in a Sudan-sponsored Hamas terrorist attack at Yonadav’s school.
- In July 2014, U.S. citizen, Max Steinberg, was killed by an anti-tank rocket fired by a Hamas terrorist.
- In October 2015, U.S. citizen Eitam Simon Henkin, was driving with his wife and children when they were attacked by Hamas terrorists. Henkin and his wife were killed in front of their four young children.
- In March 2016, Taylor Force, a U.S. citizen and West Point graduate who had served with the U.S. military in Afghanistan and Iraq, was murdered in a Hamas terrorist attack while visiting Israel with Vanderbilt University’s Owen Graduate School of Management, where he was a student.
- In July 2016, with Sudan’s assistance, Hamas carried out a terrorist attack in which Michael Mark was murdered and his U.S. citizen wife and two U.S. citizen children were gravely injured.
- In September 2018, U.S. citizen Ari Fuld was attacked and killed by a Hamas terrorist in a shopping center.
- Since 2018, U.S. citizens, Asher and Batsheva Goodman and their three children, Ephraim and Kineret Rosenfeld and their seven children, and Bracha and Yosef Vaknin and their five children — all residents of the Gaza Envelope (areas within Israel that are in close proximity to Gaza) — have been traumatized by numerous and persistent Sudan-sponsored Hamas terrorist attacks including rocket attacks as well as attacks with incendiary balloons and kites launched from the Gaza Strip.
These U.S. citizen victims discussed above (and others) have all filed lawsuits seeking to hold Sudan accountable for its decades-long support for Hamas.
Historically, Sudan also provided support to other terrorist groups. As the 9/11 Commission Report explains, in 1991 Osama Bin Laden moved to Sudan and set up a number of intertwined business and terrorist enterprises. But the 9/11 Commission Report also concluded that Sudan’s hospitality towards Bin Ladin was short lived. Western and Middle Eastern countries were unhappy with Sudan’s support for Al Qaeda, and by 1995 pressure on Sudan to distance itself from Bin Ladin’s organization peaked. In May 1996, Bin Ladin left Sudan and, together with al Qaeda’s senior officers, moved to Afghanistan. The Sudanese government cancelled the registration of Bin Ladin’s main businesses and expropriated all of Bin Laden’s assets in the country.
According to the 9/11 Commission Report, al Qaeda did not independently execute a major terrorist attack until 1998. On August 7, 1998, the U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania were almost simultaneously blown up. These attacks (the “Embassy Bombings”) took place more than two years after Bin Ladin was forced out of Sudan. The al Qaeda attack on the USS Cole (the “Cole Attack”) was carried out in October 2000, four years after Bin Ladin left Sudan. And the terrorist attacks of September 11, 2001 (the “9/11 Attacks”) were perpetrated five years after Bin Ladin left Sudan.
The 9/11 Commission Report found that Bin Ladin’s businesses in Sudan were not successful, and that any assets that remained in Sudan after he left were expropriated by the government. The Commission found that al Qaeda was financed by private donations, most of which came, not from Sudan, but from Saudi Arabia and other Gulf countries. Thus, Sudan’s responsibility for the Embassy Bombings, the Cole Attack, and the 9/11 Attacks is far from clear.
The victims (both U.S. citizens and non-citizens) of these al Qaeda attacks have filed lawsuits against Sudan based upon its alleged role in these attacks.
The Foreign Sovereign Immunities Act
Under general principles of international law, sovereign state extend immunity from civil lawsuits to their sister states. This immunity has been firmly established as a matter of custom, both in the United States and elsewhere. But foreign sovereign immunity is not absolute. There have always been exceptions – circumstances in which citizens have been permitted to sue foreign states in U.S. courts.
Until 1976, sovereign immunity decisions were made in two different governmental branches, subject to a variety of factors, sometimes including diplomatic considerations. In most cases, the U.S. government would intervene to request that a case be dismissed on the basis of immunity or that the case be permitted to proceed. The courts would usually defer to decisions of the executive branch. However, in cases where the executive branch expressed no opinion the courts would make immunity decisions on their own, informed by the immunity decisions in prior cases. Not surprisingly, the governing standards were neither clear nor uniformly applied. The result was a “system” of immunity decisions that could be made arbitrarily leaving US citizens with no recourse. The Supreme Court would later describe this arbitrary immunity regime as “bedlam.”
In 1976, Congress enacted the Foreign Sovereign Immunities Act (the “FSIA”) to replace the old system with a comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state. The FSIA was designed to require uniform application of the rules governing foreign sovereign immunity and its exceptions.
The Terrorism Exception to Foreign Sovereign Immunity
In 1996, Congress amended the FSIA to provide a remedy for United States citizen victims of state-sponsored acts of international terrorism. To allay concerns about the possible negative impact the new law might have on foreign relations, Congress limited the terrorism exception to actions against foreign states that had been specifically designated by the State Department as “State Sponsors of Terrorism.” This restriction enabled the Department of State to maintain control over foreign relations by determining which states should be subject to the new law. But once a designation was made, the applicable rules were to be applied uniformly. The FSIA’s codified legal standards were to guide the courts’ immunity determinations; and the State Department was not authorized to make case-by-case determinations.
Over the years Congress acted several times to expand the rights of victims of state-sponsored terrorism. Nonetheless, judicial interpretations reflecting a reflexive ambivalence towards actions against foreign states frustrated terrorism victims and forced them into what one federal judge described as “a long, bitter, and often futile quest for justice.” Among other defects in the terrorism exception to foreign sovereign immunity was that the courts interpreted it to require the application of state laws as a basis for finding liability. These judicial interpretations interfered with the uniform application of the FSIA’s terrorism exception. Plaintiffs who resided in states where the laws provided a cause of action could proceed under the terrorism exception, while those who resided in states where the laws did not provide a remedy were denied their day in court. The then-Chief Judge of the United States District Court for the District of Columbia, Royce Lamberth, lamented the unfairness and lack of uniformity produced by the appellate court interpretations of the terrorism exception.
To remedy these shortcomings, in 2008, Congress amended the terrorism exception to foreign sovereign immunity to provide U.S. citizen victims of terrorism with a broad array of substantive rights and remedies to produce more uniform and fair results.
Terrorism Lawsuits Against Sudan
- Lawsuits based upon al Qaeda Terrorism.
Even after the 2008 amendments the terrorism exception to foreign sovereign immunity was only available in actions brought against state sponsors of terrorism that had been designated as such by the Department of State. Today, only four countries remain designated as state sponsors of terrorism: Cuba, the Democratic People’s Republic of Korea (North Korea), Iran, and Syria. In the past, Iraq, Libya, South Yemen, and significantly, Sudan were also designated. This limitation influenced the formulation of terrorism victims’ lawsuits.
For example, the 9/11 Commission found that al Qaeda had received financing from Saudi Arabian and other Persian Gulf sources. But Saudi Arabia was not a designated state sponsor of terrorism, and therefore, the 9/11 victims’ lawsuits against Saudi Arabia or its sovereign entities hit significant obstacles.
Contrast Sudan. The 9/11 Commission made no findings linking Sudan to the attack. As discussed above, five years prior to the attack, Sudan expelled Bin Ladin and expropriated his assets. But, because Sudan was a designated state sponsor of terrorism and because it had previously provided material support to al Qaeda, the 9/11 victims could and did sue Sudan under the FSIA’s terrorism exception.
Similarly, al Qaeda’s Embassy Bombings and the Cole Attack took place more than two and four years after Sudan expelled Bin Laden and al Qaeda. But because Sudan was one of the few state sponsors of terrorism that could be sued under the FSIA’s exception to jurisdictional immunity, the victims of those attacks sued Sudan.
Over the years, numerous victims of the September 11, 2001 attacks, the Embassy Bombings, and the Cole Attack filed several lawsuits against Sudan based upon its alleged role in these horrific al Qaeda terrorist attacks. Some of these lawsuits were filed shortly after the attacks. But at least one – Taitt v. Republic of Sudan, Case No. 1:20-cv-01557 (D.D.C.) – was filed very recently, in June 2020.
- The Murder of John Granville
U.S. citizen, John Granville, worked in Sudan for the United States Agency for International Development (USAID). Granville was murdered by a terrorist cell, the members of which were arrested, tried, and convicted by Sudan. Granville’s survivors sued Sudan under the terrorism exception to the FSIA. Based upon allegations, mostly relating to Sudanese officials’ conduct after the attack (such as commuting the sentences of the killers), a U.S. district court entered judgment by default finding Sudan liable for the murder.
- The Hamas Attacks
The Hamas attacks discussed earlier in this piece were all carried out with the material support of Sudan. Like the al Qaeda victims and the Granville family, the U.S. victims of the Hamas attacks filed lawsuits seeking to hold Sudan liable for its role in those attacks. These cases differed significantly from the al Qaeda and Granville cases: Sudanese support for Hamas was absolutely clear. The U.S. Department of State had found, and filed annual reports on terrorism demonstrating Sudan’s extensive and long-standing support for Hamas terrorism.
The U.S. – Sudan Claims Settlement Agreement
In 2019, Sudan’s dictator, Colonel Omar al-Bashir, was deposed in a coup d’etat. The new government attempted to rehabilitate Sudan’s international reputation and sought to be removed from the State Department’s list of State Sponsors of Terrorism. Throughout the negotiations, the government claimed its dual goals were to support Sudan’s transition to a non-terror-supporting state and to ensure fairness to victims of terrorism.
On October 30, 2020, the United States and Sudan signed a Claims Settlement Agreement. (the “CSA”) The preamble to the CSA recognized the 1998 Embassy Bombings and the 2000 Cole Attack. But it did not state that Sudan was responsible for those attacks. The preamble did not mention any other terrorist attacks that have been attributed to Sudan.
The CSA specified the following objectives of the government’s action: (a) settling claims of the United States and of U.S. nationals; (b) providing meaningful compensation to foreign national terrorism victims who were employed, or performed contracts awarded, by the United States; and (c) barring all terrorism lawsuits by U.S and foreign nationals. The CSA also required the United States to enact legislation restoring Sudan’s foreign sovereign immunity for terrorism cases. And the CSA required Sudan to pay to the United States $335 million to be distributed by the U.S. government to certain specified claimants. These claimants included U.S. nationals who sued Sudan for its alleged role in the Embassy Bombings and the Cole Attack. They also included the family of John Granville, the assassinated USAID employee. The CSA also provided for the payment of a private settlement in favor of the foreign national plaintiffs in Mwila v. The Islamic Republic of Iran. Finally, the Annex provided for the establishment of a commission to hear and pay claims of certain specified foreign national claimants whose claims arose out of the Embassy Bombings. The CSA made no provision for payment of any victims of Sudan-sponsored Hamas attacks. Without even mentioning them, the CSA silently wiped out the Hamas victims’ claims and precluded them from pursuing their lawsuits against Sudan.
Thus, the CSA provided for compensation to almost all of alleged victims of Sudan-sponsored terrorism – even to those who were not U.S. nationals. The only Sudan terrorism victims who received no compensation for the extinguishment of the claims were the Hamas victims.
The Sudan Claims Resolution Act
The CSA required the U.S. to enact legislation restoring Sudan’s immunity to terrorism lawsuits. At the end of 2020, Congress did so. It passed the Sudan Claims Resolution Act (“SCRA”). Among other things, the SCRA restored Sudan’s foreign sovereign immunity as to (almost) all claims arising out of Sudan’s involvement in international terrorism. However, the SCRA made an exception for claims brought by the victims and family members of the 9/11 Attacks. Those lawsuits against Sudan were allowed to continue. The legislation based the 9/11 victims carve-out upon the following Congressional finding:
It is the long-standing policy of the United States that civil lawsuits against those who support, aid and abet, and provide material support for international terrorism serve the national security interest of the United States by deterring the sponsorship of terrorism and by advancing interests of justice, transparency, and accountability.
Despite this longstanding policy to allow civil actions against those who support international terrorism, the CSA and the SCRA together nullify only the Hamas victims’ claims against Sudan for its undeniable provision of material support to Hamas.
The SCRA also provided for “lump sum” payments to 9/11 victims, spouses, and dependents. And it appropriated an additional $150 million (over and above the $335 million paid by Sudan) for increased payments to Embassy Bombings victims and their family members who, subsequent to the Embassy Bombings, became naturalized American citizens. This appropriation is claimed to be intended to achieve “parity” between the naturalized American citizen claimants and the claimants who were, at the time of the Embassy Bombings, U.S. nationals. No appropriation has been made to achieve parity between the Hamas victims and the other victims of Sudan-sponsored terrorism or to otherwise compensate the Hamas victims for the termination of their claims. Instead, the Settlement Agreement and Act terminated the Hamas Victims’ claims in exchange for the compensation of all other alleged victims of Sudan-sponsored terrorism.
The U.S. Government singled out the U.S. citizen Hamas victims to be omitted from the settlement.
While the CSA was being negotiated, officials from the State Department said that the settlement with Sudan was based upon the 2008 terrorism settlement the U.S. government reached with Libya when it removed that country from the list of state sponsors of terrorism. The Libya settlement was designed to compensate the families of those killed in the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland. However, when it was anticipated that the U.S. would remove Libya from the State Sponsors of Terrorism list, the State Department engaged in a comprehensive review of cases to ensure that all nationals of the United States with terrorism claims would be included in the Libyan claims settlement agreement. Indeed, the government’s goal was to ensure that “fair compensation” was provided “to all nationals of the United States who have terrorism-related claims against Libya through a comprehensive settlement of claims by such nationals.” And, in fact, the Libya settlement compensated all victims of Libyan terrorism – those who were U.S. nationals and those who were not.
The Libya settlement uniform standards for the determination of the amount of compensation to be given to each victim, regardless of under which Libya-sponsored terrorist attack they brought their claims. Thus typically, the families of those killed in attacks were awarded $10 million; and victims who were injured in Libya-sponsored attacks were awarded $3 million. The U.S. government established procedures under which exceptions could be made. These exceptions, like the default compensation amounts, were made pursuant to uniform rules.
In contrast, when the U.S. entered into the CSA with Sudan and enact the SCRA, the State Department made no inquiry and established no process to determine which victims would be compensated. And The State Department acted for all claimants except those whose claims were based upon Hamas terrorism. The failure of the CSA to address the Hamas victims’ claims and provide fair compensation to all plaintiffs who had claims pending against Sudan is a fatal flaw, as the United States acted arbitrarily in excluding only the Hamas victims’ claims from the benefits of the settlement.
The Hamas Victims asserted that the CSA and SCRA violated the Constitution by treating them differently than all other alleged victims of Sudan-sponsored terrorism.
At least five separate lawsuits were filed against Sudan by victims of Hamas terrorist attacks. The first of these to proceed to a decision (and the only case to have been decided as of this writing) is the case of Mark v. Republic of Sudan. The Mark family sued Sudan before the U.S and Sudan entered into the CSA. However, by the time Sudan responded to the lawsuit, the CSA had been concluded and Congress had enacted the SCRA providing for the termination of all terrorism lawsuits against Sudan.
Sudan moved in the trial court for dismissal of the Marks’ lawsuit based upon the government’s settlement of their claim. As a matter of law, the government has broad authority to settle claims of U.S. citizens against foreign governments. However, like all other government authority, this power is limited by the Constitution. Thus, the Marks argued that by arbitrarily excluding the Hamas victims from the benefits of the settlement while using their claims as a bargaining chip for the benefit of victims of other Sudan-sponsored attacks, the CSA and SCRA violated their constitutional right to equal protection. The Marks also argued that by preventing them from pursuing their claims while allowing other victims’ lawsuits to continue, the settlement agreement violated their constitutional right to access to the courts.
The United States government intervened in support of Sudan and asked the court to dismiss the Marks’ case. The trial court agreed and dismissed the case. The Marks appealed.
On appeal in the D.C. Circuit, the Marks continued to argue that the Sudan settlement violated their Constitutional right to equal protection. Specifically, the Marks argued that the disparate treatment of the Hamas Victims did not bear any reasonable relationship to the purposes of the SCRA and CSA and therefore those elements of the Sudan settlement agreement were unconstitutional and unenforceable.
Sudan and the government materially misled the courts.
Sudan and the government argued, and the trial court found that, unlike the Marks and other Hamas victims, the victims who were compensated under the Settlement all either had default judgments against Sudan or had previously entered into “private settlement agreements” with Sudan. Sudan argued that the so-called “private settlement agreements” “are not subject to constitutional review because they are agreements between private parties and do not involve state action by any U.S. government entity.” Sudan added, “The distribution by the United States of the settlement funds pursuant to these private settlement agreements is … not state action because the United States is merely carrying out the terms of these private agreements.” Like Sudan, the U.S. government also repeatedly and disingenuously attempted to justify the CSA by noting that it compensated only those claimants whose cases were previously resolved, either by default judgment or by “private settlement agreements.”
However, near the end of the briefing in the court of appeals, the Marks discovered that the so-called “private settlement agreements” between Sudan and certain victims were, in fact, orchestrated by the U.S. government as part of the over-all negotiation with Sudan.
Thus, contrary to the representations of Sudan and the U.S. government, the so-called “private settlement agreements” were not the reason specific claimants were compensated under the agreements between the United States and Sudan. Rather, the agreements between the United States and Sudan were the reason Sudan entered into those “private settlement agreements.” In other words, the primary justification for the disparate treatment of the Marks was not only a fabrication, it inverted cause and effect. Additionally, the government’s involvement in the “private settlement agreements” demonstrated that rather than justifying the disparate treatment of the Appellants (as Sudan and the Government argue), the “private settlement agreements” constituted one more example of disparate treatment and, themselves, required justification to withstand constitutional scrutiny.
Appellate Oral Argument.
On October 28, 2022, the D.C. Circuit held an oral argument on the Marks’ appeal. The panel consisted of Chief Judge Srinivasan, Judge Wilkins, and Judge Rao. The Marks urged the court that Sudan’s and the government’s material misrepresentations regarding the significance of the so-called “private settlement agreements” required the court to apply a heightened standard of review to the Settlement Agreement between the U.S. and Sudan. Sudan argued that the court should apply the most deferential standard of review to the SCRA and CSA because they represented foreign policy decisions of the U.S. government and those decisions should be made by the political branches. To emphasize its argument that the SCRA and CSA represented important foreign policy decisions, Sudan’s lawyer made the unusual gesture of informing the Court that Sudan’s ambassador to the U.S. was in the courtroom for the oral argument. The Marks responded that, even foreign policy decisions must be made consistently with constitutional protections.
Finally, the Marks argued that both the history and purpose of the Foreign Sovereign Immunities Act and the Terrorism Exception, and the history of other similar claims settlement agreements with state sponsors of terrorism demonstrate that rules of access to court, jurisdiction, viability of claims and availability of compensation must be applied fairly and equitably to all U.S. citizen victims of terrorism. The SCRA and CSA both violate those fundamental principles of fairness and equity, and they violate the constitution.